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Colleges Face Legal Limits in Policing Online Misbehavior

Do colleges and schools have any authority when students misuse electronic devices both on and off school property? If there are cases of cyberbullying involving computers, cellphones, and social-network sites like Facebook and Twitter, does an institution have a legal basis to step in? Or is it stepping on free speech?

The University of San Diego’s Center for Education Policy and Law attempted to answer these questions through its Electronic Communications Devices Project, evaluating what current case law says about constitutional uses of such devices.

Frank Kemerer, the center’s associate director for research and academic affairs, said the idea for the project started a year and a half ago when the center started noticing a rise in complaints of cyberbullying at San Diego secondary schools.

“Since the technology is so new, there was very little precedent or consensus on what the student policy should be,” Mr. Kemerer said.

The project identified different uses that were not protected forms of speech—including both cyberbullying and “sexting”—and could be subject to institutional discipline. Disciplinary actions by colleges in these cases, however, are not endorsed by the courts since the students are over 18, and because their attendance at the institution is voluntary, not mandatory as it is in high school.

So that leaves it up to the individual to respond. Some of the legal suggestions for college students who have been victimized by these technologies included:

  • Pursuing a civil lawsuit claiming emotional distress if they are able to prove that the defendants’ actions went beyond the scope of civil decency or caused psychological harm to the victims.
  • Seeking an emotional-distress claim if they are able to prove that the defendants intentionally knew their actions would cause emotional distress.
  • Pursuing a civil claim against someone who has publicized misleading or private information about them.

Because of recent high-profile collegiate cases of cyberbullying—particularly the recent suicide of the Rutgers student Tyler Clementi and the Internet attack by Andrew Shirvell, Michigan’s assistant attorney general, on the openly gay University of Michigan student-body president Chris Armstrong—the San Diego center is planning to start research highlighting what, if anything, public institutions of higher education can do within the law to crack down on offenders.

“We’re hoping to answer the question of what a public institution can do to reach out to those off campus and protect those that are victimized by focusing on when the First Amendment can be applied with these devices,” he said. Mr. Kemerer is aiming to complete the project within three months.

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